Saturday, June 10, 2017

Trump's Offenses Far Worse Than 'Obstruction'

President Trump is unlikely
to be indicted and even less likely to be impeached for obstruction of justice
for hoping that FBI director James Comey could go easy on Trump's friend and
good guy, the fired national security adviser Lt. Gen. Michael Flynn. To be
sure, Comey's account of the Feb. 14 Oval Office conversation with Trump,
combined with the conspiratorial trappings of the talk and Trump's later firing
of Comey, make out an indictable case that Trump "corruptly" sought
to impede a pending federal "proceeding."

Parsing Trump's words that
carefully, however, is off-point by a country mile, somewhat akin to checking Al
Capone's tax returns to see whether the bootlegger-mobster had run afoul of
federal law. Trump's "high crimes and misdemeanors" are far worse
than anything spelled out in 18 U.S.C. §1505, according to panelists at the
American Constitutional Society's annual convention in Washington on Friday
[June 9].

Trump's actions in office
and before are not merely "unconstitutional," according to Duke law
professor Neil Siegel, but worse: "anti-constitutional." Siegel and
fellow panelists in the progressive group's featured program listed the many
ways in which Trump as candidate and now as president has stomped on and ground
into the dirt unwritten constitutional norms that are essential to U.S.
democracy. "We have a president who doesn't believe in democracy,"
Stanford law professor Pamela Karlan remarked.

Karlan started her bill of
particulars with Trump's threat during the campaign to jail his opponent,
Hillary Clinton, if elected. As a second pre-election offense, Karlan recalled
Trump's infamous reply that he would accept the results of the election only if
he won. As post-election offenses, Karlan listed Trump's repeated unsubstantiated
claims actually to have won the popular vote because of more than 3 million
votes illegally cast for his opponent. And then, in pursuit of the nonexistent
evidence, the president created a commission stacked with voting rights
opponents aimed at making it harder, not easier, to cast ballots in the
ultimate hallmark of a working democracy.

Worst of all of his
offenses, according to Slate's legal affairs columnist
Dahlia Lithwick, is the Trumpian ontology of alternative facts. "What has
been so fundamentally dismantled is the norm of truth," Lithwick remarked.
In this view, Trump's assault on the media and his assault on the courts are
part of a common strategy of seeking to delegitimize independent institutions
capable of challenging Trumpian alternative facts, like the size of the
Inauguration Day crowd or the content and purpose of the Muslim travel ban.

None of these offenses will
be found in title 18 of the U.S. Code, but the Framers appear to have been
thinking in broad rather than legalistic terms in providing for impeachment of
federal officials, including the president. In Federalist Nos. 65 and
66, Jay and Hamilton refer to "corruption" and
"treachery" as grounds for impeachment, all-encompassing terms that
might equally be rendered as "malfeasance" in office. "If you
have enough of that," Seigel said of Trump's norm-breaking conduct,
"maybe it's grounds for impeachment."

The definition of an
impeachable offense depends not on an academic debate about the Framers'
intentions but on the political will of the House of Representatives. With a
Republican majority dependent on the good will of the Republican base, the
current House is unlikely to consider impeachment  not unless Trump's
Mendoza-line approval ratings seriously jeopardize the members' own
election chances.

With impeachment off the
table for now, indictment has a natural appeal to the #NotMyPresident crowd, but
it is likely no more than a pipe dream. For starters, many legal scholars and
experts believe that impeachment, not criminal prosecution, is the sole remedy
against presidential misconduct. Oddly, the argument depends on an unwritten
constitutional norm. ''The Framers
implicitly immunized a sitting president from ordinary criminal prosecution,'' the
Yale law professor Akhil Reed Amar remarked
recently to the New York
Times's Adam Liptak.

Harvard's Alan Dershowitz
has been making a separate argument specifically against an obstruction charge.
As president, Trump has the power to direct the executive branch, Dershowitz
argues, including the power to call off a law enforcement investigation or to
fire a noncompliant FBI director. By analogy, Dershowitz cites the president's
pardon power, exercisable at his sole discretion. Yet Dershowitz's argument
proves too much: surely a pardon-for-cash scheme would be either indictable or
impeachable or both.

In the most recent full
rehearsal of the arguments, a rising legal academic has given his thumbs-up to
a possible indictment in a post
on the Trump-watching blog Take Care. Writing in
advance of Comey's testimony to the Senate Intelligence Committee, Andrew
Manuel Crespo, an assistant professor at Harvard Law School, found no bar to
charging Trump with obstruction of justice. If special counsel Robert Mueller
were to seek an indictment, Crespo wrote, "he would be acting well within the law, the
norms of the profession, and the reasonable bounds of the discretion with which
he has been entrusted."

Perhaps, but a prosecutor might want a
stronger case before testing those bounds. For now, the rule of law that Trump
so threatens may depend not on Congress or the courts, but on "we the
people" ourselves. "A republic if you can keep it," Benjamin
Franklin cautioned after helping write the Constitution in the fateful summer
of 1787. "We've lost our way,"
ACS panelist Siegel remarked, "and we need to find our way back." The
path is by no means clear.

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About this Blogger

Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He is a contributing writer with CQ Researcher and was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award. His articles have appeared in national and legal publications; he also appears as an analyst on national and local radio and television news programs.

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